Marganis and Secretary, Department of Families, Community Services and Indigenous Affairs and Buscema (Party Joined)

[2007] AATA 2026

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2026

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601007

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		DIMITRIOS MARGANIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And MARIA BUSCEMA

Party Joined

DECISION

Tribunal Miss E.A. Shanahan, Member

Date7 December 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – family tax benefit – parents separated and then divorced – Family Court Order regarding custody and care – prior to court order applicant assessed as having less than 10 per cent of the children’s care and thus nil entitlement between 23 June 2002 and 19 June 2003 – assessment of nil care and family tax benefit payments subject of the review ‑ decision affirmed.

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999

REASONS FOR DECISION

7 December 2007 Miss E.A. Shanahan, Member      

1.      A Centrelink delegate of the Secretary to the Department of Families, Community Services and Indigenous Affairs (the Secretary) made a decision dated 26 July 2004 that between 23 June 2002 and 19 June 2003 Mr Marganis’ care of his children was less than 10 per cent of the time and thus he was not entitled to any Family Tax Benefits (FTB) for that period.  The decision was affirmed by an Authorised Review Officer (ARO) on 23 September 2005).  As a result of this decision, Centrelink decided Mr Marganis had been overpaid approximately $5,000 in FTB.  Centrelink raised a debt in that amount against Mr Marganis.  Centrelink is the service provider for the Department of Families, Community Services and Indigenous Affairs (the Department).

2.      The original FTB payment to Mr Marganis was based on him having 14.24 per cent of the total care of his three children in the period under review, 33 per cent of their care from 20 June 2003 to 21 September 2003 and 22 per cent of their care thereafter in accordance with the Family Court Orders.  The period of 20 June 2003 to 21 September 2003 was re-assessed on 22 September 2003 in light of the Family Court Order.  The latter was issued on 20 June 2003. 

3.      On 13 June 2006 the Social Security Appeals Tribunal (SSAT) set aside the Centrelink decision, having found that Mr Marganis had nil per cent care of his children from 23 June 2002 to 19 June 2003 and 22 per cent care from 20 June 2003 to 10 September 2003.  The SSAT found the evidence of Mr Marganis and Ms Buscema conflicting. 

4.      On 24 October 2006 Mr Marganis lodged an application with the Tribunal for review of the SSAT decision.  Mr Marganis was self-represented and Mr F. Bakhtiar, a Centrelink advocate, appeared for the Secretary.  Prior to the first day of hearing, Mr Marganis had issued summonses to give evidence upon Professor John Hutson, Associate Professor Collin Jones, Mr G. Mirabella (Ms Buscema’s lawyer), Dr Frederick Hocking (Mr Marganis’ psychiatrist) and Mr Brian Howard (the Principal of his son Frank’s school).  Following a Telephone Directions Hearing Mr Marganis withdrew the summons to Mr Mirabella but maintained his right to cross-examine the other four individuals.  Mr Marganis provided a large volume of documents on the first day of hearing, 10 September 2007; and a similarly large volume of documents on the second day of hearing, 12 October 2007. 

5. On the first day of hearing Mr Marganis, Ms Buscema and Dr Hocking gave evidence, the last two by telephone. On the second day of the hearing Ms Buscema alone gave evidence. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents), in addition to the large bundles of documents provided by Mr Marganis which were never formally tendered.  Ms Buscema also provided extracts from her daily diary.

THE ISSUE BEFORE THE TRIBUNAL

6.      The only issue before the Tribunal is the percentage of care of his children provided by Mr Marganis between 23 June 2002 and 19 June 2003.

EVIDENCE BEFORE THE TRIBUNAL

7.      Mr Marganis maintained that in the period under consideration he had custody and care of the children approximately every second weekend and for part of the school holidays, amounting to greater than 10 per cent of their total care; and that he had documentary evidence to support his claim.  These documents were discussed at length (see below) but the vast majority related to events and reports outside the relevant period, Family Court matters, correspondence between Mr Marganis and the doctors treating his son, Frank, and correspondence with the headmaster of Frank’s school. 

8.      Mr Marganis left the family home on 23 or 24 June 2002.  However, Mr Marganis and Ms Buscema advised that they had been separated since March 2000 though living under the same roof.  After he left the family home Mr Marganis resided in a flat in St Kilda until approximately 20 January 2003, when he shifted to a large house in Taylors Lakes and then to a flat in East St Kilda from 14 July 2003 until 12 November 2003.  Since then he has lived at his current address in Raglan Street, South Melbourne (T37, p196).

9.      It would appear that Mr Marganis has been receiving a disability support pension (DSP) since 19 November 1992.  This was cancelled on 1 May 2000 and re‑instituted on 1 April 2003.  He also first applied for the FTB in June 2003, having been previously refused consideration for this benefit as he had not lodged an Income Tax Return for many years (T39).

Dr Frederick Hocking

10.     Dr Hocking has been Mr Marganis’ treating psychiatrist since December 2002 and has provided a diagnosis of recurrent depression, anxiety, tension and adult attention deficit disorder (AADD).  Dr Hocking in his evidence said that he sees Mr Marganis fortnightly and reads and discusses the entries that Mr Marganis makes in his diary.  Dr Hocking regarded Mr Marganis’ prognosis as uncertain and describes Mr Marganis as a big bloke with a loud voice, an honest person and a trier.

11.     Mr Marganis asked Dr Hocking if he believed, as feared by Ms Buscema, that he, Mr Marganis might ever hurt his children.  Dr Hocking said he was virtually certain it would never happen.  Dr Hocking could not comment on Ms Buscema’s allegation that Mr Marganis’ children had seen him taking elicit drugs; or that Mr Marganis had tried to commit suicide in June of 2003 as he had no knowledge of the latter.  While Dr Hocking had no personal knowledge of Ms Buscema’s breaches of the Family Court Orders, other than what he was told by Mr Marganis, these events did reportedly have a negative effect of Mr Marganis.

12.     Dr Hocking did not prescribe Mr Marganis’ medication.  This was left to his treating general practitioner.  The Tribunal noted that Mr Marganis takes weight reduction tablets, sedatives, anti-inflammatory drugs, dexamphetamines for his AADD and large doses of the analgesics MS Contin and Tramal, the later being prescribed for back pain secondary to a lumbar disc lesion.

13.     Ms Buscema, who was linked by telephone throughout the hearing, pointed out that Dr Hocking’s evidence did not relate in any way to the issue of how often Mr Marganis had the care of his children in the period under review.

Ms Maria Buscema

14.     Ms Buscema gave evidence on the second day of the hearing (12 October 2007).  She had requested that her evidence be given by telephone as she was fearful of being in the same room as Mr Marganis.  As Mr Marganis wanted to challenge her credibility as a witness, the Tribunal arranged for her to occupy an adjacent room and give her evidence by a video-link to enable Mr Marganis and the Tribunal to assess her responses.  Ms Buscema provided copies of her diary entries for the period under review. 

15.     Mr Marganis asked Ms Buscema if she had ever lied or perjured herself.  She refused to answer.  Ms Buscema denied she had said that Mr Marganis had not had the children during the period.  What she had said was he did not have them every second weekend and during the school holidays.

16.     Mr Marganis questioned Ms Buscema regarding various dates.  She agreed he had care of the children from 30 June 2002 to 1 July 2002 and on 3 August 2002; and that he had visited the children for 20 minutes on 5 August 2002 and for 30 minutes on 8 August 2002.  She said that Frank had telephoned his father on 31 August 2002 (a Saturday) regarding weekend custody to find that Mr Marganis was in Queensland.  On 10 September 2002 the three children accompanied a friend of Mr Marganis’ to the airport, to greet their father on his return. 

17.     Mr Marganis argued that the children spent Father’s Day in 2002 with Ms Buscema’s parents.  Ms Buscema disagreed as her diary indicated this occurred in 2003; whereas in 2002 Mr Marganis had the care of the children and took them to the Royal Melbourne Show. 

18.     Ms Buscema said she took out an Intervention Order in January 2003, after Mr Marganis came to her home and attacked her.  It was not until 25 April 2003 that their two sons spent the weekend with their father.  

19.     Ms Buscema refused to answer some questions posed by Mr Marganis as she said they had no relevance to the issue before the Tribunal.  These questions related to her valuation of his car, the Family Court proceedings, how well she knew Centrelink staff and whether she considered herself to be above the law. 

20.     Ms Buscema said that prior to the handing down of the Family Court Intervention Order she and Mr Marganis had a verbal agreement that he could see the children when mutually convenient.  She reiterated that she did not deny that Mr Marganis had occasional care of the children during the period in issue but denied that his care was greater than 10 per cent of the time. 

21.     Ms Buscema confirmed to the Tribunal that her diary entries were made contemporaneously.  She also expressed her belief that any documents produced by the children would have been written and signed under duress. 

22.     Mr Marganis decided not to call Professor Hutson, Associate Professor Jones and Mr Howard after the Tribunal and Mr Bakhtiar repeatedly pointed out that the reports from these witnesses did not address the issue before the Tribunal and had been generated either before or after the period under review.  None of these reports contained any data regarding how frequently Mr Marganis had the care of his children between 23 June 2002 and 19 June 2003. 

DOCUMENTARY EVIDENCE

Family Court Order

23.     On 20 June 2003 the Family Court of Australia issued Consent Orders that provided as follows:

1.That the husband and wife have a joint responsibility for the long time care, welfare and development of the children of the marriage …

2.That the children live with the wife;

3.That the wife have the responsibility for the children’s day to day care, welfare and development:

4.That the husband have contact with the said children as follows:-

(a)on each alternate weekend from Friday 5.00pm until Sunday 5.00pm.

(b)for half of all the Easter, July, September and long summer school vacations;

5.That for the purposes of contact the husband collect the children from the wife at the commencement of contact and that the wife collect the children from the husband at the conclusion thereof at McDonalds, Taylors Lakes;

6.That the wife keep the husband informed about the welfare of the children and in particular if any of the children are seriously ill or require hospitalisation;

7.That if the wife is away from the children during a period when the children are in her care then the children shall be placed in the care of the husband in the duration of that absence …

24.     On 23 April 2004 the Family Court amended the Order of 20 June 2003 with respect to Mr Marganis’ contact with his children to include his weekend care to cover Fridays when such Fridays were public holidays; that the pick-up site be altered to the McDonald’s restaurant in South Melbourne; and that the wife pay the husband the sum of $57,750 (presumably a property settlement payment).  The Court also made Orders regarding the ownership of chattels. 

25.     In late 2003 Mr Marganis officially objected to the Child Support Agency (CSA) raising a weekly payment of $21.69 by him to Ms Buscema.  On 21 May 2004 Mr Marganis advised the Family Assistance Office of what he perceived were breaches of the Family Court Order by Ms Buscema. 

26.     On 12 July 2004 Centrelink advised Mr Marganis that he had been overpaid under the FTB system.  The decision was reconsidered by an ARO and on 23 September 2005 a debt of $5,100.89 was raised against Mr Marganis.  None of these latter findings are relevant to the issue under review.  They are included for completeness.

Mr Marganis’ Documentation

27.     At the hearing on 10 September 2007, Mr Marganis provided documentary evidence in support of his application.  Most of these documents were dated outside the period under consideration, except to note the alleged breaches of the Family Court Order by Ms Buscema between 24 June 2003 and 23 September 2003.  There were documents showing his expenditure from 2 June 2002 to 30 June 2003 for food and groceries, motor vehicle costs, children’s gifts (totalling $1,314.00), internet charges, telephone charges, prescription drugs, rent and electricity charges.  Similar data was provided for the period between 1 July 2003 and 30 June 2004. 

28.     Mr Marganis had also provided a copy of his written objections to the CSA regarding his requirement to pay child support and a copy of his report to the Welfare Rights Union in 2005 regarding the alleged breaches by Ms Buscema of the Family Court Orders.  The report detailed occasions when the children had not been delivered to the nominated drop-off site and her alleged breaches by working part‑time in a night shift at Tullamarine Airport and leaving the children in the care of others, her parents or by themselves. 

29.     Ms Buscema had obtained several Intervention Orders against Mr Marganis. The first was in January 2002 and was for a period of 12 months; and the latest was obtained on 5 September 2005 and operated until 4 September 2007.  The first of these was in effect for approximately six months during the period under review.

30.     In a letter to CSA dated 20 September 2003, Mr Marganis outlined the dates during which he had the children in his care.  He also provided to the Tribunal a list entitled Item Purchased with entries from 13 July 2002 until 28 June 2003.  This data is considered in detail under the heading Tribunal’s Deliberations. 

31.     Mr Marganis provided photographs of himself and his children.  They appeared to relate to times when the children were in his care.  However, the dates of these visits were not provided. 

Statements of Friends and Children

32.     Mr Marganis provided numerous statements from his friends and his children regarding the periods he had them in his care.  Briefly, these were from:

A.Miss Yuki Hipworth (dated 25 January 2007).

Miss Hipworth stated that she had seen Mr Marganis with the children on numerous occasions.  However, she provided no dates or indication of how often she had seen them between July 2002 and December 2002.   

B.Mario Acciaritio (dated 6 February 2007).

Mr Acciaritio referred to the period from June 02 to December 02, when Mr Marganis was living in St Kilda.  Mr Acciaritio stated he had seen the children at Mr Marganis’ home.

C.Rocco Compitiello (dated 15 October 2006). 

Mr Compitiello stated he saw the children with their father at his flat in St Kilda between July 2003 and September 2003.  He provide no dates but the letter suggests they were seen every second weekend.  (The Tribunal notes this was after the Family Court Orders). 

D.Victor D’Andrea (dated 16 October 2006). 

Mr D’Andrea stated he saw the children at the St Kilda address. 

E.Peter Christidis (dated 16 October 2006).

Mr Christidis stated that Mr Marganis had the children in his care every fortnight between July 2002 and September 2003.  Mr Christidis had visited Mr Marganis at his St Kilda flat frequently between July and December 2003. 

F.Jackie Gagalovska (dated 25 October 2006).

Ms Gagalovska stated that she visited the Canterbury Road, St Kilda flat on numerous occasions between July 2002 and Sept 2003 and saw the children on numerous occasions.

G.Jacob Iacovou (dated 10 October 2006).

Mr Iacovou said he visited Mr Marganis’ St Kilda flat on numerous occasions and saw the children and that he had also attended the Royal Melbourne Show with Mr Marganis and his children in 2002. 

H.Mr George Kaparos (dated 19 October 2006). 

Mr Kaparos stated that Mr Marganis and his children came to his Fresh Fish Shop every fortnight between July 2002 and September 2003. 

I.Frank Marganis (Mr Marganis’ son) (dated 5 November 2006). 

Frank stated that he saw his father every fortnight.

J.Spiro Katiforis (dated 20 October 2006). 

Mr Katiforis said that he had seen Mr Marganis with his children between July 2002 and September 2003.  This statement has the same wording as that of Mr Acciaritio. 

K.John Marganis (Mr Marganis’ son) (dated 21 October 2006).

John says he saw his father at fortnightly intervals. 

L.Anjelica Marganis (Mr Marganis’ daughter) (dated 12 September 2006). 

Anjelica states that she visited her father fortnightly while he lived at St Kilda and Taylors Lakes. 

M.Mr Peter Nicolls (dated 14 November 2006). 

Mr Nicolls stated that he visited Mr Marganis at the St Kilda flat on six occasions; and to his knowledge Mr Marganis had fortnightly custody of his children.  On two occasions they had meals together and on the third occasion discussed photographs.

Ms Buscema’s Diary Entries

33.     These diary entries record that Mr Marganis had his sons in his care from 30 June 2002 to 1 July 2002; all three children for the weekend commencing 3 August 2002; and visited them at their mother’s home for 30 minutes on 6 August 2002.  On 31 August 2002 the eldest son, Frank, telephoned his father regarding seeing him on Fathers’ Day to find that his father was in Queensland.  On 10 September 2002 the two boys were collected by a friend named Charlie and  taken to the airport to pick up Mr Marganis on his return from Queensland.  The boys had slept overnight at Mr Marganis’ flat and returned to their mother’s home on 11 September 2002 at 2.30 p.m.  On Saturday, 28 September 2002, the two boys were collected at 10.30 a.m. and returned to their mother’s home on 29 September at 2.00 p.m., having attended the Royal Melbourne Show.  On 16 April 2003, a Wednesday, the three children stayed with their father until Friday (Good Friday).  On 25 April 2003 (Anzac Day) the boys were collected by their father and stayed with him that day.  On Friday, 27 June 2003, Mr Marganis was due to have the care of the children for the weekend; but he was unable to pick them up on that day due to a medical appointment and the pickup time was re‑arranged to 9.00 a.m. on Saturday, 28 June 2003. 

34.     The other entries in the diary are outside the period under consideration.

RELEVANT LEGISLATION

35.     The entitlement to FTB is governed by A New Tax System (Family Assistance) Act 1999 (the Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). Section 21 of the Act sets out the qualifications for FTB. The meaning of the FTB child is explained in s 22 of the Act.

36.     Anjelica, Frank and John Marganis meet the definitions of FTB children of Mr Marganis and Ms Buscema. 

37. If more than one person claims FTB in respect of the same children for any given period, s 22(7) and s 25 of the Act explain that the children will be FTB children of the claimant provided that there has been a pattern of care and the claimant has more than 10 per cent care of the children in the period.

38.     The Family Assistance Guide (2.1.1.70) outlines the policy to be followed where claimants do not agree on the pattern of care.  The Family Assistance Office must determine the actual pattern based on the evidence available.  The pattern of care is established by using either nights in care or the hours of care for each FTB child.  A percentage of care is then calculated.

SUBMISSIONS

39.     Mr Marganis submitted that he did not have nil care of his children and that he did not understand how the Department had calculated his percentages of care throughout the period under review; although he accepted that the 22 per cent care allotted to him was in accordance with the Family Court Orders after 19 June 2003. 

40. The Secretary did not make formal submissions but relied on its Statement of Facts and Contentions, where the Secretary contended that, as Mr Marganis had less than 10 per cent care of his children in the period under review, under the Act this was considered to be nil per cent of care. Therefore, he was not entitled to any family FTB benefits.

TRIBUNAL’S DELIBERATIONS

41.     The Tribunal has endeavoured, as did the SSAT, to estimate the care time provided by Mr Marganis between 23 June 2002 and 19 June 2003.  In doing so it has taken into consideration Mr Marganis’ letter of 22 September 2003 to the CSA, Mr Buscema’s diary entries, Mr Marganis’ expenditure entries and the evidence given to the Tribunal.  An effort has been made to confirm Mr Marganis’ claim in terms of the evidence given of his expenditure on the children and by Ms Buscema’s diary. 

42.     The table below sets out the dates upon which Mr Marganis claims he had the care of the children, the times that he claimed they spent with him on those dates and the documents purporting to prove those claims:

PERIOD CARE CLAIMED	TOTAL HOURS	SUPPORTING DOCUMENTS
5 July 2002 – 7 July 2002	48 hours	Document entitled Items Purchased
2 August 2002 – 4 August 2002	48 hours	Ms Buscema’s Diary
20 Sept 2002 – 22 Sept 2002	48 hours	Possible tally with Items Purchased
27 Sept 2002 – 29 Sept 2002	48 hours	Discrepancy with Ms Buscema’s Diary
28 Sept 2002 – 29 Sept 2002	36 hours	Ms Buscema’s Diary entry
17 January 2003– 19 January 2003	48 hours	Items Purchased
14 February 2003 – 16 February 2003	48 hours	Items Purchased
26 March 2003 – 28 March 2003	48 hours	Nil
18 April 2003 – 20 April 2003	48 hours	Items Purchased and Diary
25 April 2003– 27 April 2003	48 hours	Items Purchased and Diary
30 May 2003 – 1 June 2003	48 hours	Nil
13 June 2003– 15 June 2003	48 hours	Items Purchased

43.     Mr Marganis and Ms Buscema agreed that Mr Marganis had visited the children for short periods, just 20 to 30 minutes or a few hours, on other days.  Based on the figures submitted by Mr Marganis, he had total care of the children for, at the most, 22 days out of a total of 365 days.  This represents six per cent of their care. 

44. Mr Marganis clearly did not have the care of his children for more than 10 per cent of the time of the period under review. Therefore, he did not meet the requirements of the Act.

45.     The Tribunal affirms the decision under review. 

I certify that the forty‑five [45] preceding paragraphs are a true copy of the reasons for the decision of:

Miss E.A. Shanahan, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Dates of hearing:  10 September 2007 and 12 October 2007
Date of decision:  7 December 2007
Solicitor for applicant:                  Nil – Self-represented
Solicitor for the respondent:         Mr F. Bakhtiar, Centrelink Legal Services Branch
Solicitor for party joined:             Nil – Self-represented